Phyllis Miller v. Maxwell's International Inc., Dba Maxwell's Plum, Debtor in Possession Carlo Galazzo, Gen. Mgt., Dino La Rosa Don Bohn Don Schupak

dissenting:

I respectfully dissent from Part V of the majority opinion that individuals (employees of the employer) cannot be individually liable under either Title VII or the ADEA.

In respect to Title VII, the majority relies on Padway v. Palches, 665 F.2d 965 (9th Cir.1982), which held that an “employer,” not an employee, may be liable for an award of back pay. Id. at 968 . Part of the rationale in Padway was that the employer, not a mere employee (regardless of that employee’s supervisory powers), should pay back wages. General or punitive damages were not available under Title VII because the statute limited remedies to back pay and injunctive relief. Id. Employees, however, can be sued in their official capacities, allowing a successful plaintiff to obtain injunctive relief. See, e.g., Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557-59 (11th Cir.1987); Canada v. Boyd Group, Inc., 809 F.Supp. 771 , 779 & n. 3 (D.Nev.1992); Weiss v. Coca-Cola Bottling Co., 772 F.Supp. 407, 410-11 (N.D.Ill.1991).

*589 I am concerned that the majority’s over-broad language may unnecessarily cloud decisionmaking under-the Civil…

Plaintiff/Appellant Phyllis Miller, proceeding pro se, filed sex and age discrimination claims in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1988), and the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206 (d) (incorporated into and enforced through the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219 (1988)). She also asserted claims for retaliation and emotional distress. Miller appeals from the district court’s dismissal of her claims as untimely (barred by statutes of limitations and laches) or for failure to state a claim.

I Facts

Miller is pursuing sex and age discrimination claims against six defendants in their individual capacities: Donald Schu-pak, Dino La Rosa, Carlo Galazzo, Bui Due Huy, Don Bohn, and Robert Stewart. Donald Schupak was CEO of Maxwell’s International, the corporate owner of Maxwell’s Plum restaurant, Miller’s employer. La Rosa and Galazzo were both general managers of the restaurant; La Rosa was manager from Miller’s initial hiring in 1982 until 1985, and Galazzo was manager from 1985 until Miller’s…

991 F.2d 583 61 Fair Empl.Prac.Cas. (BNA) 948 , 61 Empl. Prac. Dec. P 42,196 , 61 USLW 2649 , 125 Lab.Cas. P 35,818 , 25 Fed.R.Serv.3d 834 , 1 Wage & Hour Cas.2d (BNA) 641 Phyllis MILLER, Plaintiff-Appellant, v. MAXWELL'S INTERNATIONAL INC., dba Maxwell's Plum, Debtor in possession; Carlo Galazzo, Gen. Mgt., Dino La Rosa; Don Bohn; Don Schupak, et al., Defendants-Appellees. No. 90-16286. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 8, 1991. Decided April 19, 1993. Phyllis Miller, pro se. Robert D. Links, Dobbs, Berger, Molinari, Vannelli, Nadel & Links, San Francisco, CA, for defendants-appellees. Samuel A. Marcosson, Atty., E.E.O.C., Washington, DC, for the amicus. Appeal from the United States District Court for the Northern District of California. Before FLETCHER, WIGGINS, and KOZINSKI, Circuit Judges. WIGGINS, Circuit Judge: 1 Plaintiff/Appellant Phyllis Miller, proceeding pro se, filed sex and age discrimination claims in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1988), and the…